Cary v. Livermore

Headnote

An affidavit for motion to change venue omitted to state that defendant had fully and fairly stated his case to his counsel, and omitted to state that his witnesses were necessary, also omitted to state that he had fully <md fairly disclosed to his said counsel *the facts which he expected to prove hy each and every of his said witnesses, held, that the defects named were sufficient to deny the motion with costs, but without prejudice, to the end that the defendant’s attorney might have a chance to try again.

Motion by defendant to change the venue.

It was objected by plaintiff’s counsel, that the affidavit of defendant upon which the motion was founded was defective. The material part of the affidavit was then read as follows (after stating the cause of action, and where the venue was laid): “ that this deponent has a good and substantial defence on the merits in this cause, as he is advised by his counsel, Abial Cook, of ¡Norwich, in the county of Chenango, and verily believes to be true.” (It then went on and stated where the cause of the action arose, and named the witnesses.) “ And that each and every of the above named persons' are material witnesses for this deponent to his defence of this cause, as he is likewise advised by counsel and verily believes, and without the testimony of each and every of the said named persons, he cannot safely proceed to the trial of this cause, as he is also advised by counsel and verily believes to be true.” The affidavit then closed by stating when the declaration was served, and how far the witnesses resided from the court houses in the respective counties.